Chetana Karunatilaka, PhD student, Member of the Environmental Law and Sustainability Research group
The Environmental Law and Sustainability Research Group (ELSRG) in collaboration with a leading law chamber, 6 Pump Court, and UK Environmental Law Association (South-West region), organised an event on the Office of Environmental Protection (OEP). A leading environmental lawyer, Mr. Christopher Badger delivered a speech on ‘The Office of Environmental Protection- A Year on, and What to Expect’. Mr. Badger specialises in environmental law cases and has an established practice as a Barrister at 6 Pump Court Chambers (London).
During the presentation, he explained that OEP is a non-departmental public body, established under the Environment Act 2021 in the United Kingdom, whose principal aims are to contribute to environmental protection and the improvement of the natural environment. OEP is not a regulatory body, rather an independent oversight body to scrutinize the whole environmental system and developments. The strategy and environmental policy of OEP was published on June 2022, which identified four strategic objectives, namely,
- Sustained environmental improvement.
- Better environmental law, better implemented.
- Improved compliance with environmental law.
- Organisational excellence and influence.
One of the major achievements of OEP during the last year was presenting its independent assessment of Government’s progress in improving the natural environment in accordance with its Environmental Improvement Plan (EIP) for England in 2021/2022.[1] The report explains that Government’s progress on delivery of the 25 year plan to enhance the environment has ‘fallen far short’. The report assessed 23 environmental targets, 14 of which were off track while no assessment could be made for the remaining 9 tasks. Mr. Badger recognised the report as a highly critical document, which reiterated the independence of the OEP and its ability to scrutinize the government.
OEP has submitted its observations and recommendations to various parliamentary committees on law reforms. OEP made their submissions to the House of Commons Retained EU Law (Revocation and Reform) Bill Committee warning that the rushed and short timeframe suggested by the UK Government for the review of Retained EU Laws could compound environmental problems and create new uncertainties/ risks.[2] The submissions flagged the opportunities to improve environmental law and how it works in practice, provided the change is managed well. The submissions also made some recommendations for the committee to consider. OEP submitted another written document to the Levelling Up and Regeneration Bill Committee regarding the proposed law reforms to avoid weakening current levels of environmental protection.[3] OEP also calls for guarantees that the reforms will strengthen the government’s desire for the overall improvement of the environment.
Mr. Badger further explained the influence that OEP can make by providing a baseline on how an environmental assessment should be undertaken, what data ought to be utilized for assessment and measuring of the progress and how to improve the chances of environmental improvement in the light of the future. OEP had filed applications with the Supreme Court requesting permission to intervene in Court cases emphasizing the significance of clarity in the law to promote good environmental decision-making.[4]
Mr. Badger pointed out some drawbacks in the enforcement mechanisms mainly due to the lack of human resources and lack of correct information etc. Referring to the R (Wild Justice) v The Water Services Regulation Authority,[5] he explained that OEP investigation would not be an alternative remedy for judicial review. There can be overlapping OEP investigation and court case on the same environmental matter.
He flagged that the OEP’s real strength rests on the fact that it has been established to keep environmental issues as a top priority, particularly in Parliament. Since environmental reviews are likely to be rare, more emphasis would be on co-operation with public authorities and on information collection. Implementation of the objectives of OEP is a broad concept where OEP must consider an array of various issues associated with policy, resources and enforcement. No indication has yet been given of what areas of environmental law the OEP may consider to be a priority for in-depth scrutiny.
Following the presentation, the floor was open for questions and answers. Mr. Brendon Moorhouse, an environmental barrister at 6 Pump Court Chambers joined the discussion session as a panel member. A number of questions were raised by the participants and the panellists as well as other experts who attended the event came up with their opinions on the questions.
Certain clarifications were made on the role of OEP in the law-making and enforcement set up. When a bill goes to the parliament, OEP can make statements regarding the bill in the capacity of an observer. If the parliament wishes to scrutinise the law-making process, it can consider such observation. It was explained that the OEP does not directly deal with international law. However, if the UK government had ratified and adopted a treaty as a part of the domestic law, and not implementing the provisions, OEP can raise their concerns regarding such non-implementation.
A question was raised regarding the investigation process and how much of it is in the public domain. The panellists responded that, when OEP undertakes to investigate an environmental issue, they will publish a notice of investigation, an information notice, decision notice in the public domain. The report will also be published after the investigation. However, the investigation by the OEP is meant to be a transparent and open process.[6]
In this impactful session on the OEP, both Mr. Christopher Badger and Mr. Brendon Moorhouse discussed their past experiences as environmental lawyers and how the work of OEP can make a positive impact on the success of such cases. The session was well attended by undergraduate and postgraduate students, alumni, academics, NGOS and professionals from different industries.
[1] Progress in improving the natural environment in England, 2021/2022 | Office for Environmental Protection (theoep.org.uk)
[2] REUL Bill evidence submission 141122.pdf
[3] 220830_OEP_LURB_Evidence_final.pdf
[4] Reports and publications | Office for Environmental Protection (theoep.org.uk)
[5] https://www.judiciary.uk/judgments/wild-justice-v-the-water-services-regulation-authority/
[6] More information is available at OEP website: https://www.theoep.org.uk/what-we-do